More than a million Canadian citizens lost their right to vote when the Ontario Court of Appeal ruled that non-resident Canadians will no longer be able to vote in federal elections if they have lived outside the country for more than five years (see, for example, Sean Fine's article Long-term Canadian expats denied right to vote, court rules in the Globe and Mail on July 20). The court's argument is based on the notion that "non-residents do not live with the consequences of their votes on a daily basis, so it would therefore harm Canada's democracy to let them cast a ballot." It can only be hoped that this ruling will be overturned eventually by the Supreme Court of Canada because the Court's ruling is, at least in my opinion, unsound.
In the section Democratic Rights, Canada's Constitution Act, 1982 declares unequivocally :
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
No ifs and buts. The Constitution does not place any explicit restrictions on when a citizen may have the right to vote. If you are a citizen 18 years or older, you can vote. It is that simple and should stay that simple. Everything else creates different classes of citizens. In their 2015 Frank v. Canada (Attorney General) ruling, the Ontario Court of Appeals agrees that the expat provision in the Canada Elections Act violates section 3 of the Charter, but then relies entirely on section 1 of the Charter to rescue the provisions of the Election Act. The Charter's section 1 guarantees rights and freedoms "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The Court is correct to argue that section 3 is not absolute. However, the bar for curtailing basic rights must be very high. I am not a constitutional lawyer, but I am unable to follow the Court's logic that curtailing expats' right to vote serves any "demonstrably justified" purpose. Votes by expats cause no identifiable harm to anyone.
The Court refers to some fictitious "harm to Canada's democracy" that they are then unable to substantiate. Reading carefully through the reasoning in sections [82]-[159], the Court's opinion is based entirely on the notion that expats "withdraw from the social contract" voluntarily by residing outside Canada and that voting rights are not "stripped" but only "suspended" after five years of absence. The Court infers that Canadians living abroad long-term remove themselves voluntarily from the social contract that binds Canadians. That may be true for some, but certainly not all Canadian expats. Many expats retain strong and meaningful connections to Canada, and their extended absence may be entirely driven by the demands of their occupation.
The Court ruling acknowledges but fails to appreciate the simple empirics of expat votes—although that is arguably not part of the constitutional exegesis that was required of the Court. Even though more than a million expats are eligible, only a few thousand actually vote. Quite clearly, those who go through the trouble of casting a ballot feel very strong ties to Canada, and ipso facto have a meaningful connection to Canada. It is unlikely that their votes alone will sway an election. Votes by expats is a non-problem. Denying expats the right to vote is, well, uncivilized.
There are many who defend the restrictions on voting rights for expats. Clifford Owen, professor of Political Science and senior fellow of Massey College at the University of Toronto, asked in his op-ed in the Globe and Mail on July 29: If I can't vote in your riding, why should expats vote in mine?. His argument is simple: voting rights require residence as only people resident in a riding have a vested interested in representation by the parliamentarian elected in that riding. In other words, voting rights are intrinsically tied completely to individual constituencies. (The Court's ruling follows similar logic.) I am not convinced by that argument. Owen ties voting rights entirely to the present first-past-the-post electoral system—something that is indeed worthwhile reforming, as I argue in my July 27 blog. If we had proportional representation or another form of hybrid representation where nation-wide votes would count, his argument would collapse like a house of cards. To argue that most voters in a federal election take a primary interest in who (as their local member of parliament) represents them in Ottawa rather than which party will form the government and who will be the prime minister is electoral fiction rather than electoral reality. Many voters in a riding would be hard-pressed to even name their local member of parliament, let alone their local candidates up for election. Should we disenfranchise non-informed voters too?
I side with Canadian actor Donald Sutherland, who in a letter to the Globe and Mail declared "I'm Canadian — and I should have a right to vote". Voting rights should not be stripped (or suspended) of any Canadian. Denying Mr Sutherland, Officer of the Order of Canada, the right to vote is a slap in the face for him and for any expat Canadian who cares deeply about Canada. Sure, there are many expats who don't care because they have left Canada for good and just keep a Canadian passport as a matter of convenience and insurance. But they don't bother voting. If there's no demonstrable harm, let our Canadian expats vote!